Fifth Circuit Blog

Tuesday, October 27, 2009

Bad Border Patrol Stop Results in Suppression Victory

Case law concerning traffic stops—and roving Border Patrol stops, in particular—breaks so heavily in favor of law enforcement that successful suppression motions are rare, although not unheard of. Even rarer are appellate decisions reversing the erroneous denial of a suppression motion, but that's just what we have in Rangel-Portillo.

There's no new law here, just application of established principles to a fact pattern. As the court describes it, "[t]his case concerns the constitutionality of a Border Patrol stop near the Rio Grande City Wal-Mart store, just 500 yards from the Texas/Mexico border in Starr County, Texas." According to the Border Patrol agent who performed the stop, "the area around the Rio Grande City Wal-Mart store in Starr County is well-known for drug smuggling due to its close proximity to the border[,]" and "that the Wal-Mart parking lot was well-known as an area where illegal aliens were often smuggled into the United States from the Rio Grande River."

One November morning, two vehicles leaving the Wal Mart parking lot aroused the agent's suspicion: a white pickup, followed by a Ford Explorer. As the Explorer passed by, and then while following the Explorer, the agent observed the following:

the driver initially looked straight ahead, but then made eye contact when the agent's vehicle approached;

the three back-seat passengers were all wearing seatbelts, and were "stone-faced";

"the passengers didn’t look at [the agent] enough and the driver looked at [him] too much";

the passengers did not talk to each other, and were sweating "pretty bad";

there were no Wal Mart shopping bags on the Explorer's floorboard.

Based on those observations, the agent stopped the Explorer. The passengers turned out to be aliens illegally present in the United States, resulting in alien transporting charges for the Rangel, the driver. Rangel moved to suppress the fruits of the stop. The district court denied the motion, finding that the agent had reasonable suspicion to stop the vehicle because of:

(1) the proximity of the stop to the border; (2) the fact that Wal-Mart is frequently used as a staging area for alien smuggling and there had been numerous apprehensions of aliens in the area over previous months; (3) the fact that [the agent] observed two vehicles driving in tandem; (4) the fact that the passengers of the Explorer failed to converse with one another and sat rigidly; (5) the absence of shopping bags in the Explorer; (6) the fact that the passengers were sweaty; (7) the fact that the rear passengers wore seat belts; and (8) the fact that the backseat passengers made no eye contact with [the agent], while the driver made repeated eye contact.

Following a conditional guilty plea to a single count of alien transportation, Rangel appealed the denial of his suppression motion.

The court of appeals reversed, holding that nothing other than the proximity to the border supported a finding of reasonable suspicion, and that isn't enough by itself. Several factors cited by the district court—passengers wore seatbelts, didn't talk, sat "rigidly," and had no shopping bags—carried no weight in the totality-of-circumstances analysis, as law-abiding folks are as likely to engage in such behavior as folks engaged in illegal activity. "And while this Court certainly recognizes the deference due to an agent’s expertise in patrolling the border, the Fourth Amendment requires that this Court draw the line at reasonableness." As for the allegedly suspicious too-much/not-enough eye contact, "since the driver’s eye contact with the officer bears little to no weight on this Court’s reasonable suspicion determination, it naturally follows that the passengers’ failure to make direct eye contact with the agent should likewise be afforded little weight." What about the agent's belief that the Explorer was traveling in tandem with the pickup? "Reasonable suspicion cannot result from the simple fact that two cars are traveling on a roadway or exiting a parking lot, one in front of the other, unless there are other 'connecting factors' to establish that their simultaneous travel could rationally be considered suspicious." Finally, the passengers' sweating wasn't enough to justify the stop absent anything other than proximity to the border: "This Court cannot conclude that an agent has reasonable suspicion to conduct a stop anytime an individual is sweating while riding in a vehicle in close proximity to this nation’s southern border."

The Court also noted the "overwhelming absence" of factors that typically contribute to a finding of reasonable suspicion: "there is no evidence that the officer observed the defendant driving erratically in response to observing his presence; the vehicle itself did not display any of the usual characteristics of a vehicle transporting illegal aliens; the time of the stop was not suspicious; and there is no evidence to indicate that the officer received a tip from an anonymous informant."

All in all, a nice opinion, save for a couple of nits that need picking. First, in setting out the factual background the court noted that the agent "was a six-year veteran of the United States Border Patrol in Starr County, Texas[,]" who in that time "has arrested over thirty individuals charged with illegally transporting undocumented workers." But isn't it also important to know the number of times that the agent stopped people who turned out not to be doing anything illegal? You can't evaluate whether an agent's suspicionometer is calibrated reasonbly by looking only at the number of hits; you've got to know the number of false positives, too.

Second, there's this odd proviso at the outset of the court's analysis:

We begin our analysis here by noting our appreciation of the difficult task our U.S. Border Patrol agents face along our nation’s southern border. Our decision herein and the reasoning to follow does nothing to detract from the Court’s respect for the challenges our agents face in attempting to secure our nation’s borders.

Nothing in the rest of the opinion suggests a lack of respect, so it's hard to see why the court found this statement necessary.

Friday, October 16, 2009

"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)

Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v. Carter (which, surprisingly enough, happened to be the first time that any appellate court had interpreted the terms in the context of the guideline):

Based on its interpretation of the provision’s plain language, legislative history as well as earlier decisions interpreting “altered or obliterated,”the Carter court held in conclusion that “for purposes of Guideline § 2K2.1(b)(4), a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.” Carter, 421 F.3d at 916. We agree with the Ninth Circuit’s reasoning and holding in Carter.

In this case, a serial number that "looked like someone 'tried to file [it] off,' as the district court found, or that . . . 'appeared to be altered and partially obliterated, as if somebody had attempted to scratch the numbers off,' as the PSR stated"—but which was apparently still legible, with effort—fit the bill.

Another thing worth mentioning from Perez: an apparent circuit split concerning the §2K2.1(b)(6) enhancement for possessing a firearm "in connection with another felony offense." Evidently, the Third, Sixth, and Seventh Circuits have held "that classifying an offense that arose from the same conduct as 'another felony offense' under U.S.S.G. § 2.K2.1(b)(6) renders the word 'another' superfluous." But as the court notes, "we have previously rejected the Third, Sixth and Seventh Circuits’ line of reasoning, as those decisions all specifically recognize." Oddly, the court goes on to hold that "Perez’s possession of the weapon as a convicted felon is sufficiently distinct from his discharging the weapon in violation of TEX. PENAL CODE § 22.05(b) & (e) (Vernon 2004) to warrant the enhancement under U.S.S.G. § 2K2.1(b)(6)." So maybe the supposed split isn't as clear-cut as it seems.

Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He Used

A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks before Rhine. (Incidentally, please let me know of any unpublished opinions worth highlighting here, as those usually fly underneath my radar.) And as you will see, the groundwork for this win was laid in the district court, once again demonstrating the importance of preserving error below.

The facts in brief: Livingston was involved of a matrix of people counterfeiting U.S. currency in the Dallas-Fort Worth metroplex. (You truly cannot tell the players without a program in this one.) It all started with a couple of folks from D.C., who provided compact discs with images of genuine currency. The actual counterfeiting was done by bleaching genuine $5 bills and printing the images of $100 bills on the blank currency paper. Livingston got a disc with the currency images from someone else, used it to make more discs, and provided the discs and computers to others. All the while, various people were all making fake $100's and passing them throughout the Metroplex.

Livingston was eventually charged, and ultimately pleaded guilty to one count of possessing counterfeit obligations (18 U.S.C. § 472), and one count of conspiring to manufacture counterfeit obligations (18 U.S.C. §§ 371, 471). When it came to calculating the loss amount, the PSR "attribut[ed] the entire amount of counterfeit obligations recovered in the Dallas-Fort Worth area that was linked to the same images Livingston used to make the counterfeit obligations." Importantly, "[i]n his written objections to the PSR and also verbally at the sentencing hearing, Livingston objected to the court’s use of the entire amount of the loss because the evidence showed there were persons other than his co-conspirators manufacturing these counterfeit bills." The district court nevertheless adopted the PSR's recommendation.

"Error," Livingston claimed. But these types of challenges are tough, because

[a] district court’s calculation of amount of loss is a factual finding that we review for clear error. In order to satisfy this clear error test all that is necessary is that the finding be plausible in light of the record as a whole. The presentence report is considered reliable evidence for sentencing purposes. If a defendant fails to submit evidence rebutting the PSR, the sentencing court is free to adopt its findings without additional inquiry or explanation.

(cites, brackets, and quotation marks elided).

Fortunately, Livingston did a crackerjack job cross-examining the case agent at sentencing. The agent testified that he arrived at the loss amount by adding together "the total amount of counterfeit currency marked with the serial numbers linked to members of the conspiracy that were passed in the Dallas-Fort Worth area." On cross-examination, the agent conceded that several different people possessed the digital images of the genuine currency; that the conspiracy was still going on; that there were other unidentified people would were involved in the manufacturing; and, "subsequent to Livingston’s arrest, banks in the Dallas-Fort Worth area continued to report instances of counterfeit currency with the same serial numbers." Moreover, the evidence showed that the D.C. folks were the ones that introduced the serial numbers into the DFW area, not Livingston. Also, someone else directly connected to the D.C. folks sold the digital images to others who were not associated with Livingston.

Hence the court's holding:

[T]he district court did not find, and the PSR does not demonstrate, that Livingston agreed to manufacture counterfeit currency with individuals other than his charged co-conspirators. The district court also failed to determine the scope of the criminal activity that Livingston agreed to jointly undertake with individuals other than his co-conspirators. We have held that such findings are “absolute prerequisites” to holding a defendant accountable for a third person’s misconduct. “Although the district court on remand is not bound by the guidelines, it must consider them, and in doing so, it is required to calculate the proper guidelines range.” We therefore VACATE Livingston’s sentence and REMAND the case for resentencing.

Just goes to show you that appeals are often won in the district court.

Thursday, October 01, 2009

Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of drugs, but relevant conduct findings concerning drug quantity jack the Guidelines range over the statutory maximum on that count, aided and abetted by a felon-in-possession count. Fortunately for Rhine, the court of appeals held that the district court erred in doing that here. And for that reason, you'll want to keep this opinion handy. It's important not so much for the factual particulars (except to Rhine, of course), but because it once again shows that relevant conduct liability is not unlimited and that the Government has to come forward with evidence, not speculation, to support relevant conduct findings.

Rhine was arrested following the proverbial "routine traffic stop," which turned up a couple of guns and 1.89 grams of crack. He was indicted and pleaded guilty to one count of PWID crack (under 21 U.S.C. § 841(b)(1)(C)), and one FIP count. Roughly a-year-and-a-half before Rhine's arrest, the FBI had raided a large-scale drug trafficking operation in the "Fish Bowl" in Fort Worth, Texas. According to agents, some of the people involved in the Fish Bowl ring fingered Rhine as a supplier of large amounts of crack and powder cocaine. Rhine was never charged in connection with the Fish Bowl, because "agents were unsuccessful in completing a controlled drug buy from" him. After his arrest in this case, Rhine

stated that he had moved into his mother’s house several months after the Fish Bowl arrests to “lay low” and to avoid getting in trouble. Rhine said that he had been unemployed since his release from state prison in 2005, yet was unable to explain how he had supported himself, his children, or his drug habit during that time. Rhine further claimed that he had not sold any narcotics or possessed any guns since his 2005 release. [He admitted to loading the guns that were found in his car.]

You can probably see where this is going next:

To determine the total amount of drugs involved in this relevant conduct, the probation officer credited the testimony of the informant who had stated that he had regularly cooked between five and six kilograms of powder cocaine into crack cocaine for Rhine over a period of several months. Basing her calculations on this information, the probation officer concluded that Rhine had possessed at least 4.5 kilograms of crack cocaine during the course of his alleged participation in the Fish Bowl drug-trafficking operations — a figure that, according to the probation officer, represented a “very conservative estimate” that she made to avoid double-counting drug amounts.

Naturally, Rhine objected to this recommendation, which pushed his Guidelines range to 292 to 360 months. (The top end would have been higher, but the statutory maximum, assuming stacked sentences, was 30 years.) He also raised a Sixth Amendment objection to increasing his sentence on the basis of facts that he did not admit and that a jury did not find beyond a reasonable doubt.

In response to Rhine’s objections, the probation officer filed an Addendum to the PSR, in which she declined to credit the objections or amend her Guidelines calculations. Insisting that Rhine’s earlier drug-related activities were relevant conduct, the probation officer voiced the opinion that Rhine “has participated in drug-related activities since at least 1993.” In particular, the probation officer cited Rhine’s three pre-Fish Bowl convictions for drug-related crimes, noting that (1) in 1993, Rhine pleaded guilty to possession of crack cocaine with intent to deliver, (2) in 1999, he pleaded guilty to possession of marijuana, and (3) in 2002, he pleaded guilty to possession of a controlled substance. Despite having no direct evidence that Rhine had engaged in any criminal activity—much less drug activity—between May 2006 and October 2007, the probation officer nevertheless found persuasive the absence of “evidence that [he] completely removed himself from that type of lifestyle.” According to the probation officer, Rhine likely would have been distributing a large volume of drugs over that period if not for “the fact that most of the larger scale dealers had already been arrested for, and convicted of, federal drug violations.” Declining to credit Rhine’s move into his mother’s house to “lay low” as a voluntary departure from crime, the probation officer instead surmised that Rhine had silently harbored intentions to “resume his drug trafficking activities.” The probation officer concluded that Rhine’s participation in the Fish Bowl drug-trafficking ring and his offense of conviction were all part of the same course of conduct or common scheme or plan.

The district court adopted the PSR's recommended findings, over Rhine's objection. Moreover,

[d]espite the absence of any record evidence, either direct or circumstantial, that Rhine had dealt drugs since the end of the Fish Bowl operations, the government stated on the record that there was no indication that Rhine had stopped selling drugs in the period between the Fish Bowl arrests and his offense of conviction. The court explained that it had taken this into consideration in making its relevant-conduct determination.

Rhine pressed both his relevant conduct and Sixth Amendment arguments on appeal. The court of appeals agreed that the district court erred in treating the Fish Bowl offenses as relevant conduct. There was no evidence that the Fish Bowl conduct and the instant offense were part of a common scheme or plan, because there were no common participants, no common modus operandi (large-scale supplier at Fish Bowl vs. small-quantity dealer here), and no common purpose. On that last point, the court noted—as it has before—that "the only common purpose linking the two offenses is Rhine’s motivation to profit from the distribution of crack cocaine, which—like the marijuana importation in Wall—is by itself insufficient to connect the offenses as separate parts of a common scheme or plan."

Nor was there sufficient evidence from which to conclude that the offense were part of the same course of conduct, which is assessed with reference to "'the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.'" First, at least 17 months passed between the Fish Bowl conduct and the instant offense.

Although not dispositive, a hiatus this large suggests that temporal proximity is lacking. We also find counter-indicative the lack of evidence that Rhine engaged in any intervening criminal activity, the presence of which might link his earlier conduct to the offense of conviction. The government urges us to overlook this shortcoming, insisting that the apparent lack of intervening criminal activity is solely the result of the informants’ imprisonment on federal drug convictions—and not Rhine’s voluntarily abstention from criminal activity. This argument is unpersuasive, as it suggests that Rhine has the burden of proving the negative fact that he did not engage in any intervening criminal activity, when in fact it is incumbent on the government to show the positive fact of Rhine’s continued drug distribution activities.

(emphasis added). Second, there were significant differences between the two offenses: "The quantities, methods of distribution, participants, and nature of the transactions—as well as the defendant’s role in them—all vary substantially." The instant offense involved a sale of a small quantity to an individual user, whereas Rhine's Fish Bowl participation involved supplying large quantities to a number of mid-level dealers. There was also "no evidence that the cocaine forming the basis for Rhine’s offense of conviction shared a common source, supplier, or destination with the cocaine involved in the Fish Bowl activities." Third,

[a]fter reviewing the instant record, we conclude that regularity is lacking, as there is no evidence that Rhine engaged in any intervening criminal activity—much less drug distribution—between the Fish Bowl drug-trafficking ring and his offense of conviction. Without even a scintilla of evidence that Rhine sold drugs in the interim, the government nevertheless seeks to shift the burden to Rhine, insisting that he must prove the negative fact that he did not engage in a series of similar drug transactions. But we decline to adopt the government’s assertion that regularity is present merely because of Rhine’s inability to disprove an assertion that already finds no support in the record, and conclude instead that there is no evidence of intervening or repetitious criminal behavior that might link the two incidents together.

(emphasis added).

I think there's a couple of important things worth noting about this case. First, the court of appeals accepted the allegations concerning Rhine's alleged Fish Bowl participation as true. It nevertheless held that the Fish Bowl offenses weren't relevant conduct. So,depending on the facts of the case, you might be able to fight relevant conduct on sufficiency-of-the-evidence-type grounds, notwithstanding plenty of unfavorable case law on burdens and the evidentiary weight given to PSRs. Second, and related to the first point, the court twice emphasized where the burden lies on this issue: with the Government. Even assuming the truth of the Fish Bowl allegations, there still wasn't enough evidence to show a common scheme or plan or a same course of conduct. The Government can't carry its burden by saying that a defendant has failed to disprove a link.

Now you might be asking yourself: why was this opinion published? Strictly speaking, it just applies existing precedent, doesn't break any new ground, and the issue is very fact-specific. One obvious possibility is the severity of the sentence. I'm not sure what the Guidelines range would have been without the Fish Bowl conduct, but it probably wouldn't have been anywhere near 30 years. And there's something that just seems wrong about effectively sentencing a defendant for conduct for which the Government evidently concluded it couldn't even secure an indictment, much less a conviction. Another possibility is that court sees a need to police overbroad application of the relevant conduct guideline, as it has done in other recent decisions like this, this, and this.

One more thing: Rhine's Sixth Amendment argument. Here's what the court had to say about that:

Having concluded that Rhine’s alleged participation in the Fish Bowl drug-trafficking-ring cannot properly be considered relevant conduct, we need not address the merits of his Sixth Amendment claim. We note, however, that the claim is foreclosed by our precedent.

It's hard to say what to make of this, because the opinion doesn't explain Rhine's argument in detail. Was he arguing that any judicial fact-findings categorically violate the Sixth Amendment (a tough row to hoe post-Booker), or was it an as-applied argument that Justice Scalia suggested in his Rita concurrence? It's hard to say without looking at the briefs, but note that the two cases the court cites as foreclosing the issue were both decided before Rita; nothing in those opinions indicates that the court was passing on an as-applied argument of the sort that Justice Scalia posited; and in one of them the defendant admitted the relevant conduct, which eliminates the Apprendi issue.